The FCC’s digital discrimination rules do little to bridge the digital divide

The fact that so many low-income consumers and others in hard-to-reach areas find themselves on the wrong side of the digital divide is an issue that members of WISPA – The Association for Broadband Without Boundaries – have been working on for decades.

Our association represents more than 600 small Internet service providers that use fixed wireless, fiber optic or other broadband technologies to provide fast, reliable broadband service to their local communities.

These communities are located in sparsely populated, rural, suburban and other areas for which larger broadband companies could not find profitable business cases. The majority of our ISP members – approximately 65.5 percent – ​​serve 2,000 or fewer residential customers, and none serve more than 250,000 subscribers. We are proud that our members provide broadband service to millions of Americans overall.

During the COVID-19 pandemic, the challenges of the digital divide became more acute. In 2020 and 2021, state and local governments issued stay-at-home orders, leading to a dramatic increase in demand for broadband domestically. To address this problem, Congress passed the bipartisan Infrastructure Investment and Jobs Act of 2021.

Specifically, the IIJA has authorized NTIA to develop the Broadband Equity, Access, and Deployment program to provide up to $41.6 billion for broadband deployment in underserved locations (no access to 25 Megabits per second broadband down (Mbps) * 3 Mbps up) or underserved (no access to broadband at 100 * 20 Mbps).

The IIJA also included Section 60506 which directed the FCC to adopt rules “to facilitate equal access to broadband Internet access services… taking into account the issues of technical and economic feasibility presented by that objective” and “to prevent digital discrimination against access based on income level , race, ethnicity, color, religion or national origin.”

Regulations to implement digital discrimination rules

In March 2022, the FCC began rulemaking to implement Section 60506. In response, ISPs large and small advised the FCC not to impose burdensome rules with disparate impact. That’s because burdensome, disparate impact rules would discourage companies from making the investments needed to connect more Americans to 100 * 20 Mbps broadband.

Claims of “disparate impact” focus on the discriminatory effects of neutral policies and practices, without regard to deliberate intent. Like proving something negative, they are expensive, time-consuming and difficult to defend.

Unfortunately, the FCC did not heed that advice. In November 2023, the FCC adopted digital discrimination rules that include this definition of digital discrimination: “policies or practices, not justified by genuine issues of technical or economic feasibility, that (1) differentially impact consumers’ access to broadband Internet access services based on their income level, race, ethnicity, color, religion, or national origin, or (2) are intended to have such a differential impact on those categories of consumers.”

The FCC has also adopted procedural rules that are unlawful and make it difficult to defend against disparate impact claims. First, the FCC’s procedural rules violate U.S. Supreme Court precedent because they do not permit an ISP defendant to argue that its decision not to provide broadband access was based on any substantial, legitimate , non-discriminatory interest.

Instead, the FCC required that a defense to a disparate impact claim must be based on the argument that the failure to provide access to broadband was due to technical or economic infeasibility. Second, the FCC defines the technical feasibility and economic feasibility of including this standard – “reasonably achievable, as evidenced by prior success of covered entities under similar circumstances.” This means that an ISP should not only focus on its own decisions to deploy, market and price broadband services – essentially its competitive differentiation – but should also focus on and, if necessary, copy the practices and policies adopted by its competitors.

The FCC could improperly determine liability for ISPs

Therefore, the FCC could wrongly find liability because a company failed to copy a competitor’s path to success. Also, the FCC has not defined “previous success” or “similar circumstances” with sufficient clarity. For these reasons, defending against such disparate impact claims would be difficult for both large and small ISPs, but particularly difficult for WISPA’s small ISP members. Third, and also contrary to Supreme Court precedent, the FCC’s rules require the defending ISP to bear the burden of proving that no less discriminatory alternative exists to the implementation practice challenged as having a discriminatory impact has.

The FCC’s disparate impact rules are based on a deeply flawed interpretation of Section 60506 of the IIJA, are inconsistent with U.S. Supreme Court precedent on how disparate impact claims should be litigated and assessed, and are not supported by any formal charges -benefit analysis.

Therefore, on February 28, WISPA filed a petition to revise these rules. Our petition will be decided by the United States Court of Appeals for the Eighth Circuit. WISPA joined a coalition of twenty entities. The coalition submitted its opening letter on April 22.

Louis Peraertz is vice president of policy for WISPA. This piece is exclusive to Broadband Breakfast.

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